Attention Construction Industry Employers: There Are Now Penalties for Failing to Provide "Heat Recovery" Periods

Employers who operate outdoors – which includes most construction employers – are already subject to Cal/OSHA’s heat standard, but a new law, Senate Bill 435, has created additional regulations.

The current Cal/OSHA heat requirements allows for cool-down periods in the shade of no less than five minutes at a time for any employee on an “as-needed” basis. Shade is required when the temperature exceeds 85 degrees Fahrenheit, and the shade must accommodate at least 25% of the employees on a shift at one time. Current regulations also provide that all employees shall have access to potable drinking water. There are additional “high heat” procedures with which an employer must comply when the temperature exceeds 95 degrees Fahrenheit. The purpose of the regulations is to allow employees to protect themselves from overheating.

The recent passage of Senate Bill 435 now creates a legal basis for penalties if an employer does not allow proper recovery periods. Specifically, SB435 expands the meal and rest break penalties under Labor Code 226.7 to include “recovery” periods to prevent heat illness. Employers cannot require an employee to work during a recovery period required under Cal/OSHA’s heat illness standard. An employer that does not provide an employee with a recovery period must pay the same penalty as for meal or rest breaks: one additional hour of pay for each workday that the recovery period is not provided.

There are several things employers should do in response to this new law:

– Ensure that all managers, foremen, and supervisors are trained in the applicable Cal/OSHA laws and SB 435.